Government employers may not provide spousal-type
benefits to unmarried couples. So says the Michigan Court
of Appeals.

The ACLU has vowed to
take the case to the Michigan Supreme Court.

The case arose when 21 same-sex
couples filed a lawsuit to prevent the Michigan "Defense of
Marriage Act" from invalidating domestic partner benefits plans
operated by various state and local government employers.
The act was adopted in 2004 when nearly 59 percent of state voters approved a ballot
measure amending the Michigan Constitution.

The amendment
specified
that "the
union of one man and one woman in marriage shall be the only
agreement recognized as a marriage or similar union for any
purpose."

The Michigan ruling will
undoubtedly be used by opponents of domestic partner benefits
programs in other states.
Twenty-seven states have passed constitutional bans on gay
marriage in the past few years. Like Michigan, 18 of them
also ban the recognition of civil unions or domestic
partnerships.

The benefits
programs at issue in the Michigan case had eligibility criteria for same-sex couples
which virtually mirrored the requirements for marriage. It
was the marriage look-alike aspect which caught the court's
attention.

Although the
plaintiffs were all same-sex partners, the appeals court noted
that its ruling applied equally to unmarried heterosexual
couples.

Michigan
Attorney General Mike Cox intervened in the case to oppose the
same-sex plaintiffs after Governor Jennifer Granholm expressed
her support for the domestic partner benefits programs.
Granholm said that voters never intended to ban such benefits
when they voted for the constitutional amendment.

Nearly a dozen public colleges
and universities in Michigan have programs which are
immediately affected by this decision. The University of
Michigan, one of the largest, had 204 employees using the
school's same-sex partner benefits policy.

Employees of the State of
Michigan will also lose out. The state agreed to provide
same-sex benefits in 2004 but put the plan on hold until the
courts ruled on its legality.

The Michigan
ruling did, however, leave open the possibility of
public employers giving benefits to unmarried couples if it is
done in a way that does not mimic marriage.

"The
amendment as written does not preclude the extension of
employment benefits to unmarried partners on a basis unrelated
to recognition of their agreed-upon relationship," the court
observed in its decision.

If the Michigan Supreme Court
does not reverse the ruling, then public
employers will need to discontinue them completely unless they
are creatively modified to take advantage of
this narrow loophole.

Two alternative methods come to
mind.

They could expand the definition of "family" and
recognize unmarried adults in an "extended family benefits"
program, or they could institute a "household benefits" plan.
Either way, the courts should not find the program to be a marriage
look-alike.

The District of Columbia has a
plan which allows an employee to
obtain benefits for an immediate family member, which can include
an unmarried partner or a blood relative. The University of
California has taken a similar approach.

By allowing relatives to
participate, eligibility looks more like a "family"
plan than a "spousal" benefits program. The Michigan
constitutional amendment does not restrict the definition of "family"
-- only the definition of "marriage".

Employers could also
create a "household benefits" program, allowing each employee
to designate one adult household member for benefits, whether
they be a spouse, a relative, or a domestic partner.
To prevent fraud or abuse, employers could require the parties
to supply proof they are financially interdependent and
have lived together for a specified period of time.

I don't know of any government
employers with household benefits programs, but two private
employers do come to mind. Ohio-based Nationwide Insurance
started its program in 2000. Catholic Charities, a
San-Francisco nonprofit, started its "household benefits"
program a few years earlier.

If the courts do not stay this
decision until it is resolved by the Supreme Court, public
employers in Michigan may consider one of these
alternatives as an immediate solution.

Assuming their objective is to
distribute benefits more fairly, they really don't have to wait
for Michigan voters to repeal the Defense of Marriage Act.
If they wait for that to happen, their younger employees may
have transformed over the ensuing years from employees to
retirees.

Thomas F. Coleman, Executive Director of Unmarried America, is an
attorney with 33 years of experience in singles' rights, family
diversity, domestic partner benefits, and marital status discrimination.
Each week he adds a new commentary to Column One: Eye on Unmarried
America. E-mail:
coleman@unmarriedamerica.org. Unmarried America is a nonprofit
information service for unmarried employees, consumers, taxpayers, and
voters.